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PERSONAL INJURY: Negligence—Innkeeper's Duty When Evicting Guests

Posted by Alfred C. Shackelford III on Wed, Jul 29, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

     Can an innkeeper be held liable when an evicted guest is injured after leaving the premises? Yes, according to the Colorado Supreme Court, in a decision that may apply in other contexts as well. In Westin Operator, LLC v. Groh, 2015 CO 25, 347 P.3d 606, a hotel's security guards required a registered guest (Jillian Groh) and several of her friends to leave the premises because they were intoxicated and boisterous. One of the friends asked if the group could wait in the hotel's lobby while they called a taxi, because it was freezing outside, but the guards refused this request. Rather than calling a taxi, the group drove away in Groh's car, and an accident occurred about 15 miles from the hotel. An action was brought against the hotel for Groh's injuries.

     The court considered whether the hotel owed a duty of care by drawing an analogy to cases involving injury to common-carrier passengers. The court relied on section 314A of the Restatement (Second) of Torts, which recognizes certain special relationships that give rise to a duty of care. That section expressly refers to innkeepers and common carriers, as well as any "possessor of land who holds it open to the public," Restatement § 314A(3), and it imposes a duty "(a) to protect them [invited members of the public] against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others," id.§ 314A(1).

     The court stated that the hotel's security guards had exposed the guests to two risks: the risk that a drunk person would drive or ride with a drunk driver and the risk of harm arising from winter weather conditions. In the court's view, there are several low-cost options available to ensure that an eviction is reasonable, including requesting police assistance, allowing intoxicated guests to wait in the lobby after they have called a taxi, or procuring a taxi for an intoxicated guest. 2015 CO 25, ¶ 36, 347 P.3d at 614. Summarizing the scope of a hotel's duty when evicting a guest, the court stated:

[W]e hold that the Westin had a duty to exercise reasonable care while evicting Groh, which required the hotel to refrain from evicting her into a foreseeably dangerous environment. Whether a foreseeably dangerous environment existed at the time of eviction depends on Groh's physical state and the conditions into which she was evicted, including the time, the surroundings, and the weather.

Id. ¶ 37, 347 P.3d at 615.

     The court rejected the hotel's argument that any duty of care ended at the time the innkeeper-guest relationship ended (i.e., at the time of eviction), concluding that the eviction process had begun at a time when the special relationship still existed. The court also ruled that Colorado's Dram Shop Act had no bearing on the case, because the hotel had not provided any alcoholic beverages to Groh or her friends. The court remanded for trial on the merits, finding that there were jury questions as to key facts because "the record does not contain determinative information on the adequacy of the Westin's training on eviction procedures, the degree of Groh's intoxication, the accessibility of alternative transportation, the parties' knowledge as to the availability of alternative transportation, and the weather conditions at the time of eviction." Id. ¶ 45, 347 P.3d at 617.

     The court's ruling may have implications for defendants other than innkeepers because of the broad scope of section 314A of the Restatement, which applies generally to premises that are open to the public. For example, bars that have "bouncers" to eject unruly patrons may be subject to potential liability if they do not act with reasonable care.

Topics: Fred Shackelford, personal injury, innkeeper, The Lawletter Vol 40 No 6, evicted guests, negligence

PERSONAL INJURY: Does Medical Monitoring in Absence of Present Physical Injury Merit Award of Damages?

Posted by Alfred C. Shackelford III on Tue, Apr 14, 2015 @ 12:04 PM

The Lawletter Vol 40 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

     If a defendant's negligence causes no physical injury, can a plaintiff recover damages for the expense of monitoring his or her medical condition? That was the issue addressed by the Nevada Supreme Court in Sadler v. PacifiCare of Nevada, 340 P.3d 1264 (Nev. 2014). In that case, the plaintiffs sued a health maintenance organization for negligently failing to oversee the quality of care provided by medical providers in its network. The providers allegedly used unsafe injection practices, potentially exposing the plaintiffs to the risk of contracting HIV, hepatitis, and other blood-borne diseases.

     The specific issue in the case was not whether medical monitoring is an independent cause of action. Instead, the question was whether an award of damages for medical monitoring is a proper remedy in a negligence action where there is no present physical injury. The court first considered whether the economic loss rule, which precludes recovery for purely economic losses in an unintentional tort case, barred recovery. The court found that this principle did not apply, because the plaintiffs alleged an exposure to the risk of diseases, which is a noneconomic injury.

     Next, the court considered whether the underlying injury must be physical in order to support a claim for medical monitoring damages. The court noted that no physical injury is required to support a claim of intentional infliction of emotional distress and that the definition of "injury" in section 7(1) of the Restatement (Second) of Torts is not limited to physical injury. The court also recognized that a significant number of jurisdictions have concluded that the costs of medical monitoring may be recovered, either as an independent claim or as a remedy for an established tort, even in the absence of a present physical injury. The court was particularly persuaded by the reasoning in the case of Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984), wherein the court held that an individual has a legally protected interest in avoiding expensive diagnostic examinations. The Sadler court concluded that the plaintiffs' negligence claim properly sought recovery of damages for medical monitoring even in the absence of present physical injury.

Topics: medical monitoring, damages, personal injury, quality of care, no physical injury

PERSONAL INJURY: Comparing Compensatory Damages Awards to Evaluate Excessiveness of Punitive Damages Awards

Posted by Gale Burns on Tue, Aug 26, 2014 @ 09:08 AM

The Lawletter Vol 39 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

     When a jury awards different amounts of compensatory damages to multiple plaintiffs in the same case but also awards each plaintiff the same amount of punitive damages, can a court compare the compensatory damages awards to determine whether a punitive damages award is excessive? That was the issue before the Virginia Supreme Court in the case of Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014). There, an intoxicated motorist (Canchola) caused an accident that injured another driver (Coalson) and the other driver's passenger (Stemke). In an action by both injured parties against Canchola, the jury awarded  compensatory damages of $5,600 to Coalson and $14,000 to Stemke, in addition to awarding $100,000 in punitive damages to each of them. The trial court remitted Coalson's punitive damages award, noting a "significant disparity" between the plaintiffs' compensatory damages awards but identical awards of punitive damages. On appeal, the Coalson court first determined that punitive damages were warranted based on Canchola's egregious conduct, as follows:

Canchola was driving while intoxicated and without a license, which had been revoked because of previous instances of driving while intoxicated. Despite having at least seven convictions for driving while intoxicated on his record, Canchola drove on several occasions on the day of the accident while drinking alcohol throughout the day. He ignored a police officer's warning not to drive and engaged in deception so that the officer would not discover he was driving, after which he drank even more and then attempted to drive again. After causing an accident that could have resulted in serious injuries, Canchola fled the scene and asked his girlfriend to lie about his involvement.

Id. at 250, 754 S.E.2d at 529.

     The court also determined that the ratio of Coalson's punitive damages to compensatory damages (1:17.86) was "high" but not unreasonably or strikingly out of proportion. Id. at 251, 754 S.E.2d at 529. The court further ruled that the ratio was not excessive for purposes of federal due process, even though under federal precedent the ratio between actual or potential harm and punitive damages should generally be within single digits.

     Addressing the central issue in the case, the Coalson court considered whether the jury properly awarded punitive damages in the same amount to plaintiffs whose compensatory damages differed, thereby applying different ratios to different plaintiffs based on the same conduct by the defendant. The court concluded that the jury acted properly, reasoning as

     We have not previously addressed whether it is proper to compare punitive damages
awards in evaluating excessiveness. However, in Allied Concrete Co. v. Lester, 285 Va. 295, 312, 736 S.E.2d 699, 708 (2013), this Court held that a trial court may not compare verdicts to evaluate the excessiveness of compensatory damages. Likewise, in John Crane, Inc. v. Jones, 274 Va. 581, 595, 650 S.E.2d 851, 858 (2007), the Court declined to compare verdicts in determining whether compensatory damages were excessive.

     We hold that the same rationale stated in John Crane, Inc. is true regarding comparing punitive damages awards: "[Comparing verdicts] is not probative of whether a verdict is excessive; rather that determination must be made based on the facts and circumstances of each case." Id. The circuit court's consideration of Coalson's and Stemke's relative ratios of compensatory damages to punitive damages as a basis for granting remittitur was error.

Id. at 249-50, 754 S.E.2d at 529.

      In dissent, Justice McClanahan asserted that the jury's verdict was either arbitrary or a result of partiality or prejudice. She explained:

     As compared to Stemke's punitive damage verdict, which was a little over 7 times
the compensatory damage verdict, the jury verdict for Coalson against the same defendant for the same conduct amounted to nearly 18 times the verdict. In other words, the jury punished Canchola more severely for the injuries sustained by Coalson than for the injuries sustained by Stemke arising from the same accident. If not arbitrary, the award was based on partiality toward Coalson or prejudice against Canchola.

Id. at 256, 754 S.E.2d at 532 (McClanahan, J., dissenting).

Topics: legal research, Fred Shackelford, Va. Supreme Court, The Lawletter Vol 39 No 6, personal injury law, comparing punitive damages to prove excessive comp, Coalson v. Canchola, determination must be based on facts and circumsta

PERSONAL INJURY: Applying the "Golden Rule" to Liability Arguments

Posted by Gale Burns on Wed, Sep 4, 2013 @ 12:09 PM

The Lawletter Vol 38 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

A "golden rule" argument asks jurors to place themselves in the position of a party. For example, an attorney may ask jurors how much the loss of the use of their legs would mean to them or ask them to "do unto others as you would have them do unto you."  Virtually all courts have considered such arguments to be improper if made in regard to damages.  However, courts appear to be split as to whether such arguments are permissible with reference to liability.

The U.S. Court of Appeals for the District of Columbia recently addressed this issue in Caudle v. District of Columbia, 707 F.3d 354 (D.C. Cir. 2013). In Caudle, several employees sued their employer for retaliation under the Civil Rights Act of 1964.  During closing argument, their attorney made four statements to the jury that were challenged on appeal.

First, counsel instructed the jury to "ask yourself, would you hesitate to speak up if you knew that speaking up would mean that your boss would call a meeting with your entire office[?]"  Id. at 358 (emphasis omitted).  Second, counsel argued, "Ask yourself this:  Wouldn't you think twice about complaining about workplace discrimination[?]"  Id. (emphasis omitted).  Third, counsel asked the jurors "to put yourselves in the plaintiffs' shoes. What would it do to you to have your complaint broadcast to your entire office, to be the only one excluded[?]"  Id. (emphasis omitted).  Finally, counsel argued:

By protecting plaintiffs' right to complain about unlawful conduct without reprisal, you preserve the rights not just of plaintiffs but of everyone. By ensuring that plaintiffs are made whole for what they have endured, you ensure that others will be free to exercise their rights without fear. Yours is an important job and we trust that you will [do what] is right and ensure that justice is done.

Id. (emphasis omitted).

The Caudle court noted that at least four circuits have held that golden rule arguments are proper when they relate to liability, while the Third Circuit found no distinction between golden rule arguments relating to damages versus liability.  The Caudle court decided that a golden rule argument is improper regardless of whether it relates to liability or to damages and that such an argument may require a new trial.  The court concluded that the rationale for prohibiting a golden rule argument as to damages—preventing a verdict based on inappropriate considerations such as emotion—applies equally to liability arguments.

Turning to the specific arguments by plaintiffs' counsel, the Caudle court found that all four were inappropriate.  The first three arguments were improper because they asked the jurors to decide how each of them—not how a reasonable person—would feel in the plaintiffs' situation. The fourth argument was not a golden rule argument, but the court found it to be inappropriate as well.  It was a "send a message" argument which, like the golden rule arguments, diverted the jury's attention from its duty to decide the case based on the facts and law as opposed to emotion, personal bias, or interest.  Id. at 361.

Next, the court found that a new trial was warranted, for several reasons. The case was a close one, yet the jury awarded $1 million in damages. Counsel's statements related to central issues in the case, and there were multiple improper arguments. The court found that the trial court's general instruction—to decide the case without prejudice, sympathy, fear, favor, or public opinion—was insufficient to eliminate unfair prejudice in the case.

Topics: legal research, The Lawletter Vol 38 No 6, Fred Shackelford, golden rule arguments, Third Circuit found improper as to damages or liab, Caudle v. District of Columbia, send-a-message argument also inappropriate, personal injury

PERSONAL INJURY: Tort of Malicious Prosecution Is Expanded in Hawaii

Posted by Gale Burns on Wed, May 29, 2013 @ 13:05 PM

The Lawletter Vol. 38 No. 3

Fred Shackelford, Senior Attorney, National Legal Research Group

In many states, one of the elements of the tort of malicious prosecution is initiating or procuring the institution of a criminal proceeding.  See generally Restatement (Second) of Torts § 653.  This element focuses on whether the alleged tortfeasor had probable cause at the time he or she initiated or procured the criminal action against the plaintiff.  What if probable cause exists initially, but during the course of the criminal prosecution it becomes clear that there is no probable cause to continue the action?  Is there any liability when a party maintains the action thereafter?  In a case of first impression, the Hawaii Supreme Court recently addressed this issue.

In Arquette v. State, 290 P.3d 493 (Haw. 2012), the respondents initiated an action in 2004 against the petitioner (Arquette) and others, alleging that Arquette had participated in a scheme to sell long-term deferred annuities to elderly consumers through unfair or deceptive acts.  The scheme allegedly involved Arquette and an insurance agent, an attorney (Wong), and others, who were accused of using Wong's name and law practice on mailings that offered information about elder law.  Individuals who responded to the mailings were then contacted at their homes, where Arquette and others falsely identified themselves as "paralegals" working for Wong.  After personal and confidential financial information was obtained from the persons who were contacted, Arquette and others allegedly marketed annuities to them without providing them with the information necessary for making an informed decision.  In 2006, the action against Arquette was dismissed without prejudice.

In 2008, Arquette sued the respondents for malicious prosecution and other causes of action, based on both initiation and maintenance of the 2004 action.  The trial court granted summary judgment for the respondents as to the claim for maintaining the 2004 action, and the Hawaii Intermediate Court of Appeals affirmed, ruling that Hawaii does not recognize a tort action for maintaining a prosecution when probable cause to continue no longer exists.

On appeal to the Hawaii Supreme Court, the court noted that such a cause of action has been recognized in Restatement § 674 and in 13 other states. Explaining the rationale for this cause of action, the court explained:

Although litigation may be warranted in the eyes of the plaintiff at its commencement, if that plaintiff becomes aware that the litigation is no longer justified, then the plaintiff should terminate the litigation.  Indeed, "litigation 'has a profound effect upon the quality of one's life that goes beyond the mere entitlement to counsel fees.'"  [Young v. Allstate Ins. Co., 119 Haw. 403,] 421, 198 P.3d [666,] 684 [(2008)] (quoting Aranson v. Schroeder, 140 N.H. 359, 671 A.2d 1023, 1028 (1995)).

If a plaintiff fails to terminate litigation when he or she knows it would be appropriate to do so, then the same harms are inflicted on the defendant's quality of life that would have been inflicted if the plaintiff knew that the litigation was unjustified in the first instance.  In order to properly guard against the harms associated with protracted litigation, the tort of maintaining malicious prosecution should be recognized.

Id. at 501.

The Arquette court concluded that "the tort of the continuation of a malicious prosecution is not an unwarranted enlargement of the current doctrine but, rather, logically stems from the policies underlying the tort."  Id. at 504.  The court set forth three elements for the cause of action, all of which must be satisfied to establish liability, as follows:

A workable standard for continuation of malicious prosecution is easily garnered from the elements that must be shown to prove the initiation of a malicious prosecution.  Thus, the standard for continuing a malicious prosecution would be (1) that the prior proceedings were terminated in the plaintiff's favor, (2) that the prior proceedings were maintained without probable cause, and (3) that the prior proceedings were maintained with malice.

Id. at 503.

Examining the record, the court concluded that the respondents did have probable cause to bring the original complaint against Arquette.  As to whether probable cause existed thereafter, the court found that throughout the proceedings, there had been a reasonable belief in the underlying facts of the case.  Moreover, the court found no independent evidence of malice in continuing the prosecution.

Following the decision in Arquette, Hawaii now joins at least 13 other states in recognizing a cause of action in tort for maintaining a prosecution when probable cause to continue no longer exists.

Topics: legal research, Fred Shackelford, The Lawletter Vol 38 No 3, personal injury, criminal prosecution, no probable cause to maintain the action, liability for continuing, actionable tort

PERSONAL INJURY LAW UPDATE: "Baseball Rule" Does Not Apply in Idaho

Posted by Gale Burns on Thu, Apr 25, 2013 @ 15:04 PM

April 25, 2013

Fred Shackelford, Senior Attorney, National Legal Research Group

At a baseball stadium, what duty of care is owed to spectators with respect to errant balls?  The Idaho Supreme Court recently addressed this issue in Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013).  The plaintiff in Rountree lost an eye as a result of being struck by a baseball while he was in Memorial Stadium's "Executive Club" section, which was located at the very end of the third-base line. This area was one of the stadium's only sections that was not covered by vertical netting.

The Rountree court noted that the precise duty owed by stadium owners and operators to spectators injured by foul balls was a matter of first impression in Idaho. The court recognized that other courts have addressed the issue, stating:

The majority of jurisdictions to consider the issue have limited this duty by adopting some variation of the Baseball Rule. See generally James L. Rigelhaupt, Jr., Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp.2003); Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144 (1935); Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 180 P.3d 1172 (2008); Lawson, 901 P.2d 1013 (Utah 1995); Bellezzo v. State, 174 Ariz. 548, 851 P.2d 847 (Ariz.App.1992); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981); Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989); Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo.1950); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925).

Though many variations exist, the most common formulation of the Baseball Rule is that stadium owners and operators must provide "screened seats [ ] for as many [spectators] as may be reasonably expected to call for them on any ordinary occasion." Quinn, 46 P.2d at 146; see also Rigelhaupt, supra, 91 A.L.R.3d 24 § 3[a]. The rationale behind this is put bluntly by the Eno Court: "it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness" and "they are liable to be thrown or batted outside the lines of the diamond." Eno, 147 N.E. at 87. The Eno Court therefore concluded that "due care on the part on the management does not require all of the spectators to be screened in; that the management performs its duty toward the spectators when it provides screened seats in the grand stand and gives spectators the opportunity of occupying them." Id.

Id. at 377-78 (footnote omitted).

The court acknowledged that it had the authority to establish or limit existing tort duties. However, it declined to do so in this case, concluding that Idaho's existing premises liability principles provide an adequate framework for analyzing a stadium owner's duty of care.  Thus, a baseball fan at a stadium is an invitee, to whom the premises owner owes a duty to keep the premises in a reasonably safe condition or to warn of hidden or concealed dangers.

The court concluded that it was not necessary to establish a special rule for baseball stadiums or that if a special rule were necessary, then the legislature would be better equipped to do research and formulate one. The court reasoned as follows:

Boise Baseball admits that at least for "seven seasons[, Mr. Rountree's] accident is the only time a spectator has suffered a 'major' injury because of a foul ball" at Memorial Stadium. The rarity of these incidents weighs against crafting a special rule. There is no history of accidents that we can look to, and draw from, to sensibly create a rule. Furthermore, Boise Baseball has not provided any broader statistical evidence regarding the prevalence of foul ball injuries in general, and—assuming they are so prevalent—how varying stadium designs might prevent them. Without this information, drawing lines as to where a stadium owner's duty begins, where netting should be placed, and so on, becomes guesswork. These kinds of questions are appropriate for the Legislature because it "has the resources for the research, study and proper formulation of broad public policy." Anstine v. Hawkins, 92 Idaho 561, 563, 447 P.2d 677, 679 (1968). Declining to adopt the Baseball Rule leaves policy formulation to the deliberative body that is better positioned to consider the pros and cons of the issue.

Id. at 379.

After declining to adopt the Baseball Rule, the court turned to the issue of assumption of risk. Specifically, the court decided whether primary implied assumption of risk is a viable defense in Idaho.  Answering in the negative, the court first distinguished between primary and secondary assumption of risk. "Secondary" implies that assumption of risk is an affirmative defense to an established breach of duty and is a phase of contributory negligence.  Id. at 380.  "'Primary . . . assumption of risk' essentially means that the defendant was not negligent, because there was no breach, or no duty."  Id. (emphasis omitted).  Elaborating on prior Idaho case law, the court ruled that assumption of risk is a defense in Idaho only when a plaintiff expressly assumes the risk, either in writing or orally. The court stated:

Allowing assumption of risk as an absolute bar is inconsistent with our comparative negligence system, whether the risks are inherent in an activity, or not. Moreover, cases involving primary implied assumption of the risk are "readily handled" by comparative negligence principles; as in any case, fault will be assessed, and liability apportioned, based on the actions of the parties. Whether a party participated in something inherently dangerous will simply inform the comparison, rather than wholly preclude it. Here, whether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury. Because comparative negligence can adroitly resolve these questions, there is no need for this Court to disturb its holding in Salinas [v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985)]: assumption of the risk—whether primary or secondary—shall not act as a defense.

Id. at 381.

The Rountree decision clarifies Idaho law as to the duty of care that is owed to fans at baseball games. More importantly, the case confirms that assumption of risk is not a defense in Idaho except when a plaintiff expressly assumes risks. Thus, the court's decision has broad implications for negligence cases generally.

Topics: legal research, Fred Shackelford, Idaho Supreme Court, Baseball Rule, screened seats, defenses, Rountree v. Boise Baseball, insurance law, contributory negligence, assumption of risk

MEDICAL MALPRACTICE: Montana Supreme Court Recognizes Cause of Action for Negligent Credentialing

Posted by Gale Burns on Mon, Jan 28, 2013 @ 12:01 PM

The Lawletter Vol 37 No 11

Fred Shackelford, Senior Attorney, National Legal Research Group

In a case of first impression, the Montana Supreme Court has joined courts from many other states in recognizing a cause of action for negligent credentialing of a physician. In Brookins v. Mote, 2012 MT 283, ___ P.3d ___ (not yet released for publication), an expectant mother hired an obstetrician who maintained a practice in his home.  The obstetrician ("Dr. Mote") had previously resigned his position at Mineral Community Hospital ("the Hospital") and pleaded guilty to misdemeanor sexual abuse of a child.  The Montana Board of Medical Examiners had placed the doctor on probation and prohibited him from treating minor patients unless a third party was present.  Aware of these facts, the Hospital declined to rehire him as an employee but did extend credentials for him to use the Hospital's facilities as an independent physician.

Medical problems persisted during the pregnancy and after delivery, and a medical malpractice action was filed against the Hospital and Dr. Mote.  The complaint alleged that the doctor had had unauthorized sexual contact with the baby during delivery, examination, and subsequent circumcision.  A claim for negligent credentialing was asserted against the Hospital.  Following a settlement with Dr. Mote, the trial court granted summary judgment for the Hospital.

On appeal, the court noted that it had not formally recognized the tort of negligent credentialing but that 40 years earlier it had observed that hospitals have a duty to take steps to ensure patient safety in the process of accreditation and granting of privileges.  The court also noted that it recognizes analogous torts, such as negligent selection or hiring of an independent contractor.  Finally, the court acknowledged that at least 30 other states recognize the tort of negligent credentialing.  The court concluded:

             Based on these authorities, we are persuaded that the "gradual evolution" of the common law supports the recognition of the tort of negligent credentialing. Sacco, 271 Mont. at 234, 896 P.2d at 426.  We therefore recognize negligent credentialing as a valid cause of action in Montana.  Similar to a medical malpractice claim, a plaintiff in a negligent credentialing action must establish the following elements:  "(1) the applicable standard of care, (2) the defendant departed from that standard of care, and (3) the departure proximately caused plaintiff's injury."  Estate of Willson [v. Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, ¶ 17, 258 P.3d 410, ¶ 17].

Id. at ¶ 60.

The Brookins court also ruled that expert testimony was required in order to establish that the Hospital had deviated from the standard of care.  Since the mother did not present such testimony, the court affirmed the grant of summary judgment for the Hospital.

Topics: legal research, The Lawletter Vol 37 No 11, Fred Shackelford, medical malpractice, negligent credentialing, Brookins v. Mote, Montana Supreme Court, must establish standard of care, departure from standard, and proximate injury

CIVIL PROCEDURE: How Not to Execute Service of Process

Posted by Gale Burns on Wed, Dec 19, 2012 @ 15:12 PM

The Lawletter Vol 37 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

As any plaintiff's attorney will tell you, even the best case can meet an early demise if service of process is not properly effected on the defendant.  A recent unpublished decision from the U.S. Court of Appeals for the First Circuit—of some interest because it was authored by Retired U.S. Supreme Court Associate Justice David H. Souter—illustrates the need to do one's homework on proper service, particularly when the defendant resides outside the country.  The case also demonstrates the power of the court to dismiss for dilatory practices, even when there is no deadline for service of process.

In Feliz v. MacNeill, Nos. 10-1549, 11-1308, 2012 WL 3590807 (1st Cir. Aug. 22, 2012) (not selected for publication), the plaintiff estate commenced a medical malpractice and wrongful death suit against three physicians, including Dr. Brian MacNeill, by filing the complaint in a Massachusetts trial court on January 29, 2009.  Under the Massachusetts rules, the plaintiff had 90 days to obtain service.  On the 90th day, April 30, 2009, the plaintiff both successfully moved for a 90-day extension of time to serve the complaint and improperly attempted to serve the complaint by leaving it with an assistant to the general counsel of the medical center where Dr. MacNeill formerly worked.  While under no obligation to do so, Dr. MacNeill's lawyers informed the plaintiff in early June that Dr. MacNeill was a permanent resident of Ireland.  Ten days later, the plaintiff improperly attempted to serve Dr. MacNeill in Ireland by certified mail.  The extended period for service expired on July 29, 2009, and on August 10, 2009, Dr. MacNeill moved to dismiss for lack of service.  Only after Dr. MacNeill had moved to dismiss did the plaintiff hire the services of an international process service company, APS, to make service on Dr. MacNeill in Ireland.  Shortly after hiring APS and one month after the expiration of the extended time to obtain service, the plaintiff moved for a second 90-day extension, which the court granted.  Two months later, the United States, as codefendant, removed the case to the U.S. District Court for the District of Massachusetts.  One month after removal, the second 90-day extension granted by the Massachusetts trial court expired.  One month after expiration of the second extension, Dr. MacNeill again moved to dismiss for lack of service.  The plaintiff, who had not sought a third extension from the federal court, opposed the motion, citing difficulties with establishing APS's agency to the satisfaction of Irish authorities.  The federal district court denied Dr. MacNeill's motion without prejudice and gave the plaintiff an additional 45 days (in addition to the 47 days that had already passed after the expiration of the second extension) to make service.  At the end of the 45-day extension, the plaintiff moved for another 90-day extension, and Dr. MacNeill renewed his motion to dismiss.  The district court denied the motion for an extension and granted the motion to dismiss with prejudice.  The district court denied a subsequently filed motion to vacate the order of dismissal and entered final judgment for Dr. MacNeill.  Two months later, the plaintiff filed another motion to vacate on the basis that APS, through a local Irish authority, had served Dr. MacNeill on May 5, 2010.  The district court denied the motion for lack of jurisdiction, since the matter was already pending in the First Circuit Court of Appeals.

Using words like "dilatory," "lackadaisical," and "sluggish" to describe the attempts of the plaintiff's counsel to make service on Dr. MacNeill, the First Circuit affirmed the decision of the district court.  The court noted that while the Massachusetts rule requiring service within 90 days of filing the complaint did not apply once the case was removed to federal court, the case had been pending in state court for 280 days at the time of removal, with no real effort to make service.  The court also observed that although the 120-day time limit for making service set forth in Federal Rule of Civil Procedure 4(m) specifically does not apply to service in a foreign country, it is within the discretion of the court to dismiss for failure to serve abroad when a plaintiff is dilatory.  As examples of the plaintiff's unexcused delay, the court cited the plaintiff's failure to attempt service for the first 90 days after filing the complaint, the entire time permitted under the Massachusetts rules; the plaintiff's attempt to serve Dr. MacNeill by leaving the complaint with a legal assistant of the medical center; the plaintiff's attempt to serve Dr. MacNeill in Ireland by certified mail; the two-month delay in contacting APS after Dr. MacNeill's attorneys advised the plaintiff of his permanent residence in Ireland; the failure to seek additional extensions of time to make service until prior extensions had expired; a 19-day delay in seeking an order from the federal district court after APS advised the plaintiff that the Irish authorities needed an order appointing APS as a special process server; and the 97-day delay in notifying the district court that service had taken place 461 days after the plaintiff had filed the original complaint.  In spite of the difficulties posed by service outside the country, Justice Souter put these facts in context, stating:

[I]t is telling that once APS had its credentials in hand, on February 4, 2010, it took only 90 days to get approval from the Irish authorities and to serve process on Dr. MacNeill.  If she had attempted service with any diligence, Feliz probably could have served MacNeill within 120 days of filing her complaint, within the period of only one extension of time for good cause under the applicable state rule, and well outside the zone of danger of dismissal under Federal Rule 4.

Id. at *5.

The Feliz case is a primer in "how not to do it."  While certainly no reader of this lawletter would commit all of the errors noted by Justice Souter in the First Circuit's opinion, the decision is a reminder of the importance of addressing unusual issues regarding service of process at the outset of the case rather than at its unnecessary end.

Topics: legal research, John Buckley, 1st Circuit, The Lawletter Vol 37 No 9, Feliz v. MacNeill, proper procedure and timeliness, service of process, civil procedure

PERSONAL INJURY LAW UPDATE: Cause of Action for Wrongful Death of Nonviable Fetus

Posted by Gale Burns on Mon, Dec 17, 2012 @ 11:12 AM

December 18, 2012

Fred Shackelford, Senior Attorney, National Legal Research Group

Under English common law, a right of action for personal injury abated upon the injured person's death, and the decedent's dependents were left without a legal remedy. In 1846, the English Parliament enacted the Fatal Accidents Act, better known as Lord Campbell's Act, creating a cause of action for wrongful death. Before long, all of the state legislatures in the United States had passed similar wrongful death statutes.

However, beginning as early as 1884, American courts interpreted these statutes to exclude recovery for the death of unborn children. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). This trend began to change in 1946, as courts started to allow recovery for the wrongful death of infants who had been injured before birth but died after being born alive. Cf. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946) (recognizing cause of action for prenatal injury incurred after fetus became viable). As of late 2011, at least 36 states generally recognized, whether by statute or case law, a cause of action for the death of an unborn child. Carranza v. United States, 2011 UT 80, & 14 n.9, 267 P.3d 912.

However, not all of these states have specifically addressed the issue of whether a cause of action exists for the death of an unborn child where the death occurs prior to the child's viability. Courts that have decided this issue have reached different conclusions. For example, courts in New York, North Carolina, and South Carolina have refused to allow recovery for the wrongful death of nonviable fetuses or have suggested that there can be no such recovery. Johnson v. Ruark Obstetrics & Gynecology Assocs., 365 S.E.2d 909, 912 (N.C. Ct. App. 1988) (dictum), aff'd, 395 S.E.2d 851 (N.C. 1990); Crosby v. Glasscock Trucking Co., 532 S.E.2d 856 (S.C. 2000); Bacani v. Rosenberg, 861 N.Y.S.2d 24 (App. Div. 2008). Conversely, courts in Alabama, Illinois, Missouri, Oklahoma, South Dakota, and Utah have recognized causes of action for the wrongful death of nonviable fetuses. Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); Smith v. Mercy Hosp. & Med. Ctr., 560 N.E.2d 1164 (Ill. App. Ct. 1990); Connor v. Monkem Co., 898 S.W.2d 89, 92 (Mo. 1995); Pino v. United States, 2008 OK 26, 183 P.3d 1001; Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787; Carranza, 2011 UT 80, & 14 n.9, 267 P.3d 912. See generally Sheldon R. Shapiro, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411.

Of course, since wrongful death causes of action arise by statute, the issue is typically resolved by interpreting statutory language. The Restatement (Second) of Torts reflects this reality:

Harm To Unborn Child

(1)            One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.

(2)            If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.

Restatement § 869.

The more recent cases suggest that the trend is toward allowing recovery for the wrongful death of nonviable fetuses. For example, in the Carranza case, the Utah Supreme Court interpreted the term "minor child" to include any fetus from the moment of conception, reasoning that the term "minor" sets an upper age limit on the term "child" but not a lower limit. In the Pino case, the Oklahoma Supreme Court construed a statute that allowed recovery for the death of "one" and determined that the term "one" included a nonviable fetus. 2008 OK 26, & 20, 183 P.3d 1001.

In the Mack case, the Alabama Supreme Court focused on public policy and an Alabama criminal statute in deciding that recovery should be allowed for the wrongful death of a nonviable fetus. The court explained:

Given the purpose of the Wrongful Death Act of preventing homicide, we agree with the Huskey Court that it would be "incongruous" if "a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly." Huskey, 289 Ala. at 55, 265 So.2d at 597-98. Moreover, the viability rule, much like the born‑alive rule, actually benefits the tortfeasor who inflicts a more severe injury. Under the viability rule, a tortfeasor who inflicts an injury that causes the immediate death of a nonviable fetus escapes punishment, while a tortfeasor who inflicts an injury that does not result in death, or that results in death only after the fetus attains viability, may be liable for damages. As the Eich Court reasoned, "[i]t would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant," especially given the focus in the Wrongful Death Act on punishing the wrongdoer by allowing punitive damages. Eich, 293 Ala. at 97, 300 So.2d at 355.

In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover, it is an endeavor that unfairly distracts from the well established fundamental concerns of this State's wrongful‑death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that "logic, fairness, and justice" compel the drawing of such a line; instead, "logic, fairness, and justice" compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.

79 So. 3d at 611.

In Virginia, the trend toward more liberal wrongful death recovery has taken the form of legislative action. At its 2012 legislative session, the General Assembly amended the Wrongful Death Act, Va. Code Ann. § 8.01-50, to allow recovery for "fetal death," as defined in Code § 32.1-249(2). Under the statutory definition, "fetal death" is defined to occur "regardless of the duration of pregnancy." Va. Code Ann. § 32.1-249(2). The amendment to Virginia's wrongful death statute abrogates the holding in  Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969), wherein the court held that there is no cause of action for the death of an unborn viable child, because such a child was not a "person" under the wrongful death statute.

In the absence of specific legislative action, it is likely that courts will continue to grapple with the issue of recovery for the wrongful death of nonviable fetuses. Cf. Jenkins ex rel. Hajeh v. Hearn Vascular Surgery, P.A., 719 S.E.2d 151 (N.C. Ct. App. 2011) (remanding personal injury case to determine whether personal injury claim exists for child who was injured prior to viability but born alive). If the present trend continues, it is likely that more states will allow such recovery in the future.

Topics: legal research, Fred Shackelford, wrongful death, cause of action for nonviable fetus, trend toward allowing recovery, personal injury

PERSONAL INJURY: Preinjury Release of Child's Personal Injury Claim Held Invalid

Posted by Gale Burns on Tue, Oct 16, 2012 @ 15:10 PM

The Lawletter Vol 37 No 7

Fred Shackelford, Senior Attorney, National Legal Research Group

Businesses often require a child's parent to sign a release before the child may participate in an activity that the business conducts or sponsors.  In some cases the release includes an indemnification provision that requires the parent to indemnify the business from any claim brought on behalf of the child.  In a case of first impression, the Maryland Court of Special Appeals has ruled that such agreements are invalid on public policy grounds.

In Rosen v. BJ's Wholesale Club, Inc., No. 2861 Sept. Term 2009, 2012 WL 3764517 (Md. Ct. Spec. App. Aug. 30, 2012) (not yet released for publication), a membership warehouse club provided a play center for its customers' children, but a parent was required to sign a release and indemnity agreement in advance.  While the plaintiff mother was shopping, her child was injured while playing on an apparatus known as "Harry the Hippo."  The key issue in the case was whether the release agreement was enforceable to relieve the defendant of liability.

Lacking on-point authority in Maryland, the Rosen court turned to case law from other states for guidance.  In other states, the majority rule is that public policy precludes enforcement of such agreements, for several reasons.  First, a statute or rule may require court approval in order to release a child's claim, although the Rosen court noted that such is not the rule in Maryland.  Second, such agreements may remove an important incentive to act with reasonable care, and they are often imposed without any bargaining or opportunity to buy insurance.  Third, commercial businesses are in a better position than children are to eliminate hazards and protect themselves.  Finally, a state may act as parens patriae to protect children from harm.

The Rosen court adopted the majority view, stating that its holding would provide incentives for commercial enterprises to take reasonable precautions in operating and maintaining their facilities, and to obtain adequate insurance to cover risks arising from the negligence of agents and employees.  With regard to the agreement's indemnification provisions, the court ruled that they were an invalid attempt to circumvent the public policy that invalidated the release language.  The court expressly declined to consider whether its ruling might apply when nonprofit or governmental entities are involved.

Topics: legal research, Fred Shackelford, indeminification provision invalid on public polic, Rosen v. BJ's Wholesale Club, Maryland Court of Special Appeals, The Lawletter Vol 37 No 7, personal injury, preinjury release

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